Second count in trover for the beasts.

Pleas-first, not guilty; secondly, to the first count, that the plaintiff did not deliver to them, nor did they receive from the plaintiff, the said beasts, or any of them, for the purpose, and on the terms alleged.

At the trial, which took place at the Warwick Summer Assizes, before Keating, J., the facts appeared to be as follows:-On the 13th November, 1861, the plaintiff bought the beasts in question in Oxford Market, and delivered them to the station master at the Oxford Station of the defendants, with directions that they should be carried to Birmingham in time for the market, to be there held on the following day. At the time of the delivery of the cattle to the station master, a ticket was signed by the plaintiff, in the following form:

"Cattle, sheep, and pigs (reduced rates). *To the Great Western Railway, Oxford Station. "Nov. 13, 1861.

"Received from Allday, of, the under-mentioned animals, on the conditions stated below, and at special reduced charge, below the rates authorised by law.

"To be sent to Bordesley Station.

"The loading and unloading is to be performed by the sender, and any assistance voluntarily given by the company's servants to be at the risk of the owner. The company are not to be subject to any risk in the receiving, loading, forwarding, in transit and unloading, nor to be amenable for any damage, actual or consequential, arising from suffocation, from being trampled upon, bruised, or otherwise injured from fire, or any other cause whatsoever, nor from any consequences arising from over-carriage, detention, or delay in or in relation to the conveying of the said animals however

caused."

It further appeared that the defendants have two stations at Birmingham, at which cattle designed for the market are usually delivered, namely, the Bordersley Station for cattle coming to Birmingham from the south, and Hockley Station for cattle coming from the north of England. The Bordersley Station, the one mentioned in the ticket, is the proper station for the delivery of cattle coming from Oxford. The cattle, by some mistake or accident, were overcarried to the Hockley Station, and consequently could not be delivered to the plaintiff on his inquiring for them on the following morning at the Bordersley Station, nor did he regain possession of them until the afternoon, when the market was nearly over. The plaintiff consequently lost the market, and the cattle moreover were injured by having been kept in the trucks all day without food or water.

Compensation in respect of the plaintiff's loss was demanded and refused, whereupon the writ in the present action was issued, but no further proceedings therein were taken until after the decision of the House of Lords in Peek v. The North Staffordshire Railway Company (10 H. L. C. 473; S. C., 9 Jur., N. S., 914). There was no proof that the rate charged by the company in respect of the carriage of the cattle were below the rates by law chargeable.

accordingly. The company are not liable. There was a special contract between them and the plaintiff as to the terms upon which the cattle were to be conveyed, and the company are, therefore, entitled to claim exemption in respect of "over-carriage, detention, and delay," there being nothing unreasonable in the conditions printed on the ticket, within the meaning of the 17 & 18 Vict. c. 31, s. 7. There are great difficulties in the way of a company making arrangements for the carriage of cattle. [Crompton, J.-There is a difference between this and the case where a railway company stipulated for non-liability in respect of damage by the detention, &c. of fish to be by them conveyed. There, under the circumstances, the condition imposed was not unreasonable.] Then, further, there was no "loss or injury" to the cattle, within the meaning of the section. Such detriment as the cattle sustained was by reason of the want of food and water, which is a consequential and remote injury, whereas the statute contemplates only such as is of an immediate and corporeal description. COCKBURN, C. J.-I am of opinion that no rule should be granted in this case. Whatever doubt may exist as to the application of the statute to injury by the loss of a market, it is, nevertheless, admitted that there has been loss of condition to the cattle, and this, I think, amounts to injury, within the meaning of sect. 7 of the 17 & 18 Vict. c. 31. Then, as to the condition imposed by the company, by virtue of which they claim complete immunity from liability for damage occasioned by detention, delay, &c., I am of opinion that such condition is unreasonable. The ticket certainly contains an intimation that the rates charged are upon a reduced scale, but no evidence appears to have been offered that the charges were not the highest allowed by the law. If it could really be shewn that the company had undertaken to carry the cattle at lower rates than they were legally entitled to, in consideration of the owner being content to take his chance of the due arrival and safety of his property, I think, under such circumstances, they would have been protected. Here, however, nothing of the kind appears, and in the absence of such proof, I think the plaintiff is entitled to retain his verdict.

CROMPTON, J.-I am of the same opinion. It is clear, both that the cattle sustained injury, within the meaning of sect. 7, by the mismanagement of the defendants, and that the condition attempted to be imposed by the company was an unreasonable one. The rule must be, therefore, refused. MELLOR and SHEE, JJ., concurred.—Rule refused.

Ex parte A. S. DE JIVAS.-Nov. 4. Articled clerk-Illness-Discharge from old articles. An articled clerk served under his articles for nineteen months and upwards, when, becoming ill, he was compelled to relinquish attendance at his master's office for a period of sixteen months. At the end of that time he applied to be discharged from the current articles, and for permission to enter into fresh articles for the remainder of the time necessary to complete the five years. The Court granted the application.

the time necessary to complete the five years.

The affidavit of the applicant stated that articles of clerkship, dated the 18th November, 1861, had been

*Beale v. The South Devon Railway Company (5 H. &

Jan 14, 1965.

vests in him an interest in the soil; but looking at the circumstances of this case, I am of opinion that the arrangement confers no such interest, and, in fact, nothing beyond running powers. There is nothing like exclusive occupation on the part of the Midland Company.

MELLOR and SHEE, JJ., concurred.-Judgment for the appellants.

ROBERTS v. EVANS.-Nov. 10.
Award-Arbitrator-Enlargement of time.

Where there was reason to suppose that an enlargement of the time for making an award had not been made by the arbitrator duly, and in compliance with the terms of order of the reference, and the arbitrator declined cither to make an affidavit, or to give any information upon the

ject; the Court, upon motion by one of the parties to discharge the rule making the order of reference a rule of court, upon the ground that the affidavits did not verify the time at which the enlargements were made, ordered that the arbitrator should attend before the Master to be examined upon oath.

Rule calling on the defendant to shew cause why a rule obtained for making an order of reference a rule of court, should not be discharged, on the ground that the affidavits did not verify the time at which the enlargements of time were made.

It appeared that, by an order of Blackburn, J., all matters in difference between the parties were referred to an arbitrator, who on the 5th February made and published his award in writing. Independent of any enlargement of the time, the award should have been ready on or before the 11th January. The award on its face shewed an enlargement to the 1st February, and another to the 1st March. It was sworn that the latter enlargement was not made until the 5th February, when the award and order of reference were delivered. The arbitrator declined either to make an affidavit, or to state whether the enlargements were made in due time.

Mellish, Q. C., shewed cause, and contended that the party was entitled to the information he sought of the arbitrator. [Cockburn, C. J.-If the arbitrator, influenced by some absurd notion of the dignity of his office, declines to give the required information, there is no reason why the Court should not compel him to do what is required, under sects. 46 or 48 of the Common-law Procedure Act, 1854.]

PER CURIAM.-Let a peremptory order issue that the arbitrator attend before the Master to be examined on oath, and let the rule be enlarged until next term.-Order accordingly.

In the ordinary case of a sale of goods in a shop, there is an implied warranty by the seller, that he has a good title; so that, in the event of the title proving defective, the purchaser may recover the money which he has paid.

Declaration for money payable by the defendant to the plaintiff for money received by the defendant for the use of the plaintiff; for money paid by the plaintiff for the defendant at his request; and for money found to be due on an account stated. Plea, never indebted.

The action was tried in the court of record for the city of Manchester, and the facts were as follows:The plaintiff was a commission agent, carrying on business in Manchester, and the defendant was a job warehouseman. In April of each year the plaintiff called on the defendant, and was then shewn certain pieces of print, which the defendant represented to be a job lot just received by him. The plaintiff agreed to buy the lot, which consisted of seventeen pieces, at the rate of 5d. per yard; the terms were cash, but the defendant objected to give the discount of 27. 10s. per cent., usual on such transactions; and he allowed 17. 10s. per cent. only. The defendant's son made out an invoice in the presence of the plaintiff, of which the following is a copy:

"20, Chertson-street, Portland-street, Manchester, April 18, 1864.

"Mr. Eicholtz.-Bought of R. Bannister, job warehouseman, prints, fents, grey fustians, &c., job and perfect yarns in hanks, cops, and bundles, seventeen pieces of prints, 52 yards at 518. 17. 108. per cent. for cash

£19 6 0 060

£19 0 0"

The plaintiff paid the defendant for the goods before he left the defendant's place of business. The goods were then forwarded to the plaintiff. A few days afterwards the plaintiff sold the goods for a sum of 197. 158. net; but they were almost immediately returned to him by the party to whom he had sold them, the goods having been recognised to be the property of one Krauss, from whom they had been stolen. The same afternoon two sergeants of the detective department came to the plaintiff's warehouse about the time the plaintiff was returning the goods to the defendant, and one of them marked the goods, and said he would follow them. The plaintiff then went with a porter to the defendant's warehouse to deliver the goods, one of the sergeants following; he went into the warehouse, and there saw the defendant's son, to whom the plaintiff stated how matters stood, but he declined to receive the goods back.

The plaintiff then applied personally to the defendant to refund the money, which he said he would do, so soon as Johnson (the party from whom he alleged he had bought the goods) had paid him.

The jury found a verdict for the plaintiff for the full amount of his claim. Leave was reserved to the defendant to move to have this verdict set aside, and instead thereof to enter a verdict for him, or a nonsuit, on the ground that there was no warranty of the defendant's title on the sale by him to the plaintiff. A rule having been obtained accordingly,

C. Pollock shewed cause.-There was here an implied warranty of title. The goods were sold by the defendant as owner, and, according to our law, an implied warranty is annexed to such a sale; and an express warranty is not necessary to support an action brought against the seller on the title proving defective. The same rule holds good in the Roman, French, Scotch, and American law. (Addison on Contracts, 224, 5th ed.; Code, lib. 8, tit. 45; Dig., lib. 21, tit. 2; Code Civil, art. 1626; Troplong, c. 4; Armstrong v. Percy, 5 Wend. 535; 2 Kent's Com. 478). In Ryall v. Rowles, Lee, C. J., in commenting on L'Apostre v. L'Plaistrier (1 Wms. 318), says, that it was there held by the Court, that offering to sell generally was sufficient evidence of offering to sell as owner. By the older authorities, the law was, that there was no warranty of title in the actual contract of sale, but the affirming goods to be the goods of the seller has been held equivalent to a warranty. (Medina v. Stoughton,

1 Ld. Raym. 593; Crosse v. Gardner, Carth. 90). In 2 Bl. Com. 452, it is stated, that a purchaser of goods and chattels may have satisfaction from the seller if he sells them as his own. Parke, B., in delivering the judgment of the Court in Morley v. Attenborough (3 Exch. 500, 513), observes—“ We do not suppose that there could be any doubt, if the articles are bought in a shop professedly carried on for the sale of goods, that the shopkeeper must be considered as warranting that those who purchase will have a good title to keep the goods purchased. In such a case the vendor sells as his own, and that is what is equivalent to a warranty of title." (See, also, Sims v. Marryat, 17 Q. B. 281; 13 Jur. 282; Chapman v. Speller, 14 Q. B. 621; Noy's Max. 209). In the next place, there was here a

total failure of consideration.

Holker, in support of the rule.-The contention on the part of the plaintiff amounts to saying, that there is, by the law of England, an implied warranty in sales. The general rule, however, is, that there is no implied warranty of title in respect of chattels. In Omerod v. Hutts (14 M. & W. 664), Tindal, C. J., after stating, that if a representation of quality is honestly made, and believed at the time to be true by the party making it, though not true in point of fact, no action lies, observes as follows:-" Although the cases may in appearance raise some difference as to the effect of a false assertion or representation of title in the seller, it will be found, on examination, that in each of those cases there was either an assertion of title embodied in the contract, or a representation of title which was false to the knowledge of the seller." In Hall v. Conder (2 C. B., N. S., 22; 3 Jur., N. S., 366), Williams, J., states, that, "with regard to ascertained chattels, there is not any implied warranty of either title or quality, unless there are some circumstances beyond the mere fact of a sale from whith it may be implied." (Springwell v. Allen, 2 East, 448, note). It being the general rule, that in the sale of ascertained chattels there is no implied warranty of either title or quality, the sale in a shop can create no difference in law. Expressions of judges have been cited, but there has been no adjudication that in such a case a warranty is to be implied.

ERLE, C. J.-I am of opinion that this rule should be discharged. The plaintiff has brought an action for money paid to the defendant for drapery goods purchased in the shop of the defendant, the goods having been claimed after the purchase by the true owner, from whom they were stolen. The action is to recover the price of those goods, and the declaration is for money had and received, and at the trial the verdict of the jury was for the plaintiff. Mr. Holker moved to set this verdict aside, on the ground that by the common law of England there is no warranty of title on the sale of goods, and that the principle of caveat emptor applied. After listening attentively to the arguments, I decide in accordance with the current of authorities, that where a vendor, by word or conduct, gives a purchaser to understand, at the time of the sale, that he is the owner of the goods he is selling, this is part of the contract; and if it should turn out that he is not the owner, an action lies to recover the money which the purchaser has paid. The law is laid down by Parke, B., in his very elaborate judgment in Morley v. Attenborough; and in the course of that judgment he observes, We do not suppose that there would be any doubt if the articles were bought in a shop professedly carried on for the sale of goods, that the shopkeeper must be considered as warranting that those who purchase will have a good title to keep the goods purchased;" and I rely on this observation of the learned judge. Here the party buys certain articles in a shop kept by the defendant, and according to the law laid

down, the seller thereby represents himself to be the owner of the goods which he has sold. So much for this particular case.

It has often been asserted, however, as shewn by Mr. Holker, that there is no implied warranty of title in the sale of chattels. I adverted to Noy's Maxims (p. 209), where it is stated, that "if I take a horse of another man, and sell it, and the owner take him again, I may have an action of debt for the money, for the bargain was perfect by the delivery of the horse; and caveat emptor." This proposition would rather shock the understanding of ordinary men; but I take the meaning of this to be, that where a person sells a horse in his possession without saying that he has or has not a title to it, and the purchaser accepts it on these terms, and pays for the horse, he cannot call upon the vendor to restore the price, in the event of the horse being claimed by a third person. This is the principle on which the case of Morley v. Attenborough is decided. So, in Chapman v. Speller, where a person bought the goods of an execution debtor from another person who had bought them at a sheriff's sale, both parties having been present at that sale, and the goods were taken from the last purchaser, there it was held, that there was no warranty of title. In point of fact the sheriff, in such a case, says that he has laid his hands on the goods, and that any one purchasing them does so at his peril.

So in Hall v. Conder, which was the case of an assignment of a patent right, there was no implied warranty that the patent was useful, or new, the contract between the parties being for the sale of the patent, such as it was. But almost all cases of sale in ordinary life are cases where the seller, by his conduct, expressly holds himself out as owner; and a person who sells does, in reality, exercise the strongest right of dominion; in common language, he sells as owner.

Noy's maxim, as to the purchase of a horse, is a mere dictum; and the same must be said of the remark by my Brother Williams in Hall v. Conder. In no case has there been a judgment, and this shews the wisdom of Lord Campbell's observation in Sims v. Marryat, commenting on Morley v. Attenborough, that if, by the law of England, the rule of caveat emptor applies in a sale of personal property, the exceptions stated in the judgment of that case are so numerous as to well nigh eat up the rule.

BYLES, J.-I am of the same opinion. It has often been said, that a mere sale of chattels does not involve a warranty of title. I do not controvert this, but it is barren of authority; and it is clear, that there may be a warranty of title, by the declaration or conduct of the party, or by the surrounding circumstances of the case. In America, we learn from Kent, if a seller has the possession of the article, and sells it as his own, he is understood to warrant the title; but if the posses sion be in another, the rule of caveat emptor applies; and he cites a dictum of Holt, C. J., in Medina v. Stoughton. But Buller, J., alluding to the same case, says, on the contrary, that absence of possession ought to be the strongest evidence of a warranty of title. These observations neutralise each other.

KEATING, J.-I am of the same opinion. We do not, by our present decision, controvert any judgment, but a dictum only. In this case there are circumstances strongly calculated to lead the purchaser to suppose that the vendor had a good title to the property. I was pressed with the argument of Mr. Holker, as to whether there could be more affirmance of title in a shop than out of one; and no doubt the distinction might be a fine one; but it is not necessary to decide that now. We have a sale in a shop, with every circumstance to bring it within the exception.Rule discharged.

The respondent was the owner and occupier of a house of the clear annual value of 10l., and was also the owner of the two adjoining houses. The respondent, under the provisions of a local act, entered into a composition in respect of rates for all three houses for one year, and after the expiration of the year the overseers continued to assess the house occupied by the respondent at the sum compounded for, viz. 31. 5s., being much less than the rateable value, which sum the respondent had paid: Held, that the respondent was rated in respect of the house he occupied.

This was an appeal from a decision of the revising barrister for the borough of Kidderminster, who stated the following case:—

William Jones occupied, in St. John-street, in the parish of Kidderminster borough, for twelve calendar months previous to the last day of July, in the present year, a house and garden of upwards of the clear yearly value of 107. He was the owner of the said house and garden, and also of two adjoining houses some years since, under the provision of an act (4 & 5 Vict. c. 72), intituled "An Act for the better assessing and collecting the Poor Rates in the Borough of Kidderminster, in the County of Worcester." He compounded with the overseer for the said borough for the poor rates of the above houses for the term of one year; and by entering into such composition only one-half of the amount was assessed on the said house and garden for poor rates as would have been assessed thereon if the said William Jones had not entered into such composition. At the expiration of the year for which such composition was entered into, and down to the month of July last inclusive (the July rate being made and allowed on the 22nd of that month), the overseers continued to assess the said house and garden on composition, although the said William Jones did not enter into any composition agreement with them other than as above stated; neither did he attend any meeting of the overseers for the purpose of entering into any other composition agreement, but the demand made by the overseers, and the receipt given by the collector, stated that the rates were composition poor rates. Subsequently to his entering into such composition as aforesaid, and previously to the 31st July, 1863, he made improvements to the said house and garden, by which the clear yearly value thereof was raised to upwards of 107.

In the compound poor rate made and allowed the 15th October, 1863, which was the first rate made after the 31st July preceding the gross estimated rental of the said house and garden, was put in at 57. 10s., and the rateable value at 31. 58., and the gross estimated rental of the said other two houses was put at 47. each, and the rateable value at 27. 10s. each; the amount of the rate assessed upon and payable by the owner, instead of the occupier, by virtue of the statute or statutes in that behalf, was, for all three houses, 48. 9d., viz. 1s. 104d. for the said house and garden, and 1s. 54d. each for the other two houses; recoverable arrears, 17. 38. 3d.; total amount to be collected, 17. 8s. 6d.; amount actually collected, 10s.; recoverable at balancing in the books, 13s. 6d.

The said William Jones in October, 1863, but he could not state the precise day, claimed to be rated separately from the said two other houses, and to the full rate, for and in respect of the house and garden in his occupation, for the purpose, as he then stated

to the overseers, of getting his vote; but he did not at the same time pay or tender the arrears of rates then due. The overseer did not alter the rating in respect of the said house and garden in the occupation of the said William Jones.

The said William Jones, subsequently to his claiming to be separately rated as aforesaid, and previous to the 20th July in the present year, paid to the overseers of the said borough the sum of 10s. and 12s. 6d., making together 11. 2s. 6d., which was more than sufficient to pay all rates due previously to the 5th January last in respect of the house and garden in his own occupation; but at the time of making such payment he did not state or specify to what rate, or in respect of which houses, he paid the said amounts, and the collector placed the amount against all the rates due, viz. 11. 8s. 6d. It was objected on the behalf of the said Richard Powell, that the name of the said William Jones should be expunged, inasmuch as he had not been rated, in respect of such house and garden, to all rates for the relief of the poor in such parish of Kidderminster borough, made during the time of such his occupation as aforesaid. Secondly, that he had not paid the poor rates payable from him previously to the 5th January on or before the 20th July in the present year. I held, that he was rated, in respect of such house and garden, to all rates for the relief of the poor in such parish of Kidderminster borough, made during the time of his occupation, and that he had paid the poor rates payable from him previously to the 5th January on or before the 20th July in the present year, and accordingly retained his name on the list of voters.

If the Court shall be of opinion that, under the circumstances stated, the said William Jones was not rated, in respect of such house and garden, to all rates for the relief of the poor during the time aforesaid, or that he had not paid the poor rates payable from him previously to the 5th January on or before the 20th July in the present year, then the name of the said William Jones is to be expunged from the list of voters, and the register of voters is to be altered accordingly. If the Court shall be of a contrary opinion, the register of voters to remain unaltered.

Keane, Q. C., for the appellant.-The question turns on the meaning of the proviso in the 27th section of the 2 Will. 4, c. 45. The proviso in the latter part of the section is, "Provided always, that no such person shall be so registered in any year, unless he shall have occupied such premises as aforesaid for twelve calendar months next previous to the last day of July in such year; nor unless such person, where such premises are situated in any parish or township in which there shall be a rate for the relief of the poor, shall have been rated, in respect of such premises, to all rates for the relief of the poor in such parish or township, made during the time of such his occupation so required as aforesaid; nor, unless such person shall have paid on or before the 20th July in such year all the poor rates and assessed rates which shall have become payable from him, in respect of such premises, previously to the 6th April then next preceding." The respondent has not paid his rates. There was no special appropriation of the payment by the overseers, and where there are several separate debts, a receiver may appropriate the money paid generally to any debt. I do not deny that the money may be appropriated by the conduct of the parties. There need be no appropriation by words. The case finds no appropriation; we must, therefore, suppose there was no appropriation.

Karslake, Q. C., for the respondent, was not heard. ERLE, C. J.-The respondent is rated. We shall assume that the rate is valid. Objection may be taken to the rate if it be not valid, but that objec